2 Winners, Same Silver Coin …That PDP Verdict On Senate, FEC

Every coin has two faces, what parties seeking ‘ tie-break’ in logjam of choices usually call ‘Head’ or Tail.’ Before a coin is tossed for two conflicting parties, there must be a primary choice in contest, in the case of a soccer event, who kicks the ball first or chooses a desired half of the field.

If therefore, the log-jam now prompted by President Umaru Musa Yar’Adua’s more –than 73-days absence from his presidential desk were to be put in context, two opposing choices will naturally emerge: One in favour of section 145 of the 1999 Nigerian Constitution and the other; respect for the two Abuja High Court rulings voiced on two different occasions by the  same Justice Abutu. Lets see both angles.

First, section 145 of the 1999 Constitution which is titled, Acting President during temporary absence of president, states thus: ‘ whenever the President transmits to the President of the Senate and Speaker of the House of Representative a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice –president as Acting President”

Key points to note here are,  “written declaration”, ‘proceeding on vacation’ (Leave, as Nigerian Civil Servants know it) and “unable to discharge the functions of his office”

Did the president send a written declaration to the Senate President or Speaker House of Rep? No!

Away for more than 70 days on vacation, sorry sick leave(?), Yes. In these number of days, has Mr President been able to “discharge the functions of his office”? No.

Thus, the questions to be raised are, since the president did not transmit any such written declaration, understandably, giving his health condition, at the time of leaving Nigeria for the King Faisal Specialist and Research Centre in Jeddah Saudi Arabi, Nov 23, last year, where, he has since been receiving treatment for acute preicaditis- an inflammation of the lining of the heart, can Vice President Goodluck Jonathan be sworn-in as acting president? Or were it to be seen as Mr President normal annual leave,

sorry vacation, how long would it last? And without the constitutional Senate or Reps notification, is it legally right for the vice president to perform the duties of his boss as if he were acting president?

In a country, where politicians think less of the next election and more of the next generation valid answers to these questions would not be too hard to find.

Now, lets also analyse the second part, the two Abuja High Court rulings, based upon which the Federal Executive Council (FEC),  a body of ministers appointed by the ailing president, to make a public declaration about the true state of the president’s health.

Disturbed by the long absence from his office as president, concerned Nigerians had sought constitutional interpretation from an Abuja High Court, presided over by Justice Abutu, before whom the applicants sought, among others, relief that vice President Jonathan be sworn-in as acting president.

But Justice Abutu in his first, ruled  that the Vice President could exercise presidential powers in the absence of the president but could not be sworn-in as acting president since Yar’Adua did not transmit a letter to the National Assembly to that effect.

In his second ruling, Justice Abutu gave the Executive Council of the Federation, often also called the Federal Executive Council (FEC) 14 days starting from last Saturday, January 23, 2010 to pass a resolution on the health of the president. The  body didn’t need 14 days, they took the decision last Wednesday, January 27, 2010 and told Nigerians that President Yar’Adua was not incapacitated but that he would return to the country next (this) week.

The court’s ruling and directive to the FEC is hinged on the long winding path and hurdles placed in way of a Goodluck Jonathan ever having in his CV, Acting President, if section 144, (1a-c,2,3,4a-b,5), are to be considered

The section spells out how an ailing president or vice president shall cease to hold office and states in 144 (1,A-B) as follows.

(a)…if, by a resolution passed by two thirds majority of all the members of the executive council of the federation, it is declared that the president or vice-President is incapable of discharging the functions of his office, and (b) the declaration is verified, after such medical examination as may be necessary, by a medical panel established under subsection (4) of this section in its report to the president of the Senate and the Speaker of the House of Representative.

(2) where the medical panel certifies in the report that in its opinion the president or the vice president is suffering from such infirmity of body or mind as render him PERMANENTLY INCAPABLE (emphasis mine) or discharging the functions of his office, a notice there of signed by the president of Senate and the Speaker of the House of Representatives shall be published in the official Gazzette of the Government of the Federation.

(3) the president or vice president shall cease to hold office from the date of publication of the notice of the medical report pursuant to subsection (2) of this section.

And then the constitution explains the constitution of the medical panel which opinion will determine the removal of either the president or vice president, in sub section.

(4) The medical panel to which this section relates shall be appointed by the president of the senate and shall  comprise Five medical practitioners in Nigeria –

(a)        One of whom shall be the personal physician of the holder of the office concerned; and

(b)        Four other medical practitioners who have, in the opinion of the President of the Senate, attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted in accordance with the foregoing provisions.

(5)        In this section, the reference to “Executive council of the Federation is a reference to the body of ministers of government of the Federation, however called, established by the President and charged with such responsibilities for the functions of government as the president may direct.

This is why a lawyer, who had obviously lost his mind said on national television last Tuesday “they are a bunch of desperate politicians determined to save their jobs not the nation. Who knows what could happen to their jobs, if the Vice President were to be sworn-in as Acting President,” I do not agree with that lawyer, what I do know however is that anytime the lion feeds something dies; anytime a new President emerges the status quo, or a part of it, is displaced; any time a vice becomes acting president, he, and not a retiring Chief Justice swears-in a successor; anytime there is a president, he presents his budget to a joint session of the national assembly and not do so through a proxy; and anytime there is a serving president, there is no quarrel as to who should sign bills passed by the National Assembly.

Now, the issues that should be addressed in all these, our prayers for the quick recovery of the President notwithstanding, are; should the Vice President be sworn-in as Acting President to fill the vacuum created by Yar’Adua’s  long absence so as to perform all such duties that only a  President can perform? Or should we remain where we have been, since November 23, last year, content with the verdict of Yar’Adua’s ministers, that their boss is fine and would return soon?

These, methinks are the two faces of the silver coin, which the ruling Peoples Democratic Party (PDP) said bear same faces-‘head’ and ‘head’, since the senate and the Federal Executive Council (FEC) are both right.

Looking critically, however, the Senate position and that of the roundly criticized chairman, Board of Trustees of the PDP, former President Olusegun Obasanjo, are slightly similar, only, the latter should have voiced the same view privately, even earlier, or never at all.

My Agony is, that even with the awesome powers of a President which VP Jonathan is said to have exercised so far, including the power of sending the military to Jos to quell the tin city’s disturbances, and all, the legality of signing the 2010 Appropriation Bill into law, when passed by the National Assembly, may not be one of the spoils of a Vice President’s office.

Yet, the PDP says, both the Senate and the FEC are right and deserve same commendation. Many agree, I don’t.